dismissed EB-1A Case: Fashion And Photography

U.S. Citizenship 
and Immigration 
Services 
In Re: 5303295 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 16, 2020 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , an artisan, photographer, and fashion designer, seeks classification as an alien of 
extraordinary ability. See Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 
1153(b)(l)(A). This first preference classification makes immigrant visas available to those who can 
demonstrate their extraordinary ability through sustained national or international acclaim and whose 
achievements have been recognized in their field through extensive documentation. 
The Director of the Nebraska Service Center denied the petition , concluding that the record did not 
establish that the Petitioner had a one-time achievement (a major, internationally recognized award) 
or met at least three of the required evidentiary criteria. The Petitioner appealed the matter to us, and 
we dismissed the appeal. The Petitioner then filed a motion to reopen the matter with us, which we 
then denied. 
On second motion, the Petitioner submits additional evidence and asserts that she meets the two 
additional criteria claimed in her initial motion. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act , 8 U.S.C. § 1361. Upon review, we will dismiss the motion to reopen. 
I. LAW 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2) . The implementing regulation 
at 8 C.F.R . § 204.5(h)(3) sets forth two options for satisfying this classification's initial evidence 
requirements. First , a petitioner can demonstrate a one-time achievement (that is, a major , 
internationally recognized award). If that petitioner does not submit this evidence, then he or she must 
provide documentation that meets at least three of the ten categories listed at 8 C.F.R. 
§ 204.5(h)(3)(i) - (x) (including items such as awards, published material in certain media , and 
scholarly articles). Where a petitioner submits qualifying evidence under at least three criteria, we 
will then determine whether the totality of the record shows sustained national or international acclaim 
and demonstrates that the individual is among the small percentage at the very top of the field of 
endeavor. 1 
A motion to reopen is based on documentary evidence of new facts. The requirements of a motion to 
reopen are located at 8 C.F.R. § 103.5(a)(2). We may grant a motion that satisfies these requirements 
and demonstrates eligibility for the requested immigration benefit. 
II. BACKGROUND 
In her decision, the Director determined that the Petitioner met only one of the requisite three criteria, 
regarding display of her work at artistic exhibitions or showcases. On appeal, we determined that the 
Petitioner met an additional criterion related to playing a leading or critical role for an organization 
with a distinguished reputation, but did not establish that she met at least three of the initial criteria, 
as required. 2 The Petitioner then filed a motion to reopen with us, providing new evidence and 
claiming to meet two additional criteria for published material and for high salary. We subsequently 
dismissed this motion, determining that the evidence did not demonstrate her eligibility for the two 
additional criteria. 3 
The Petitioner now submits a second motion to reopen, provides new evidence, and asserts that these 
materials demonstrate that she meets the criteria claimed in her first motion. 
III. ANALYSIS 
At the outset, the Petitioner did not include the required statement about whether or not the validity of 
the unfavorable decision has been, or is, the subject of any judicial proceeding. 8 C.F.R. 
§ 103.5(a)(l)(iii)(C). A motion that does not meet applicable requirements shall be dismissed. 
8 C.F.R. § 103.5(a)(4). Moreover, for the reasons discussed below, the new evidence submitted in 
support of the instant motion to reopen does not demonstrate that the Petitioner satisfied two additional 
criteria, as claimed. 
A. Motion to Reopen 
We previously determined on motion that the Petitioner had not submitted evidence sufficient to 
establish that she met the published material criterion. In the instant motion, she again provides two 
articles published in the magazine domus design. 4 The first, published inl I 2006, has already 
1 See Kazarian v. USC IS, 596 F .3d 1115 (9th Cir. 2010) ( discussing a two-part review where the documentation is first 
counted and then, if fulfilling the required number of criteria, considered in the context of a final merits determination): 
see also Visinscaia v. Beers. 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USC1S, 772 F. Supp. 2d 1339 (W.D. Wash. 
2011 ). This two-step analysis is consistent with our holding that the "truth is to be determined not by the quantity of 
evidence alone but by its quality," as well as the principle that we examine "each piece of evidence for relevance, probative 
value, and credibility. both individually and within the context of the totality of the evidence, to determine whether the 
fact to be proven is probably true." Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010). 
2 See Matter of 0-S-, ID# 129424 (AAO Jul. 5, 2018). 
3 See Matter ofO-S-, ID# 200787 (AAO Feb. 15, 2019). 
4 We note that the Petitioner also includes printouts from herO online shop as well as other photographs of her work. 
which we have reviewed, but do not discuss here. 
2 
been submitted, reviewed, and considered; accordingly, we will not address it in this proceeding. The 
second, published in~ 2007, while previously submitted, lacked a complete translation. 5 On 
second motion, the Petitioner provides this article, which credits her with "photographs in the interior," 
and its complete translation. She asserts that it features her work, and directs our attention to a page 
in which the editor references ~-------------~' However, the article is about the 
apartment and its design, not about the Petitioner. Articles that are not about a petitioner do not meet 
this regulatory criterion. See, e.g., Negro-Plwnpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. 
Sept. 8, 2008) (upholding a finding that articles regarding a show are not about the actor). 
The Petitioner submits new documentation to demonstrate that domus design qualifies as major 
medium. Specifically she includes online circulation statistics for burdastyle.ua, a printout from 
www.burda.ua describing domus design, and circulation statistics for other Ukrainian magazines "on 
architecture and design." She also submits articles identifying domus design as one of "the best" 
magazines for design and decor in Ukraine and discussing the magazine's role in "major award 
ceremonies, fashion show events, furniture exhibits, and more." 
In order to establish that a publication is major media, evidence should show that its online or print 
circulation is high relative to that of other publications. 6 While the Petitioner provides the online 
circulation statistics for burdastyle.ua, the "digital segment" for Burda Ukraine, 7 she does not submit 
evidence demonstrating how these statistics are reflective of domus design's on-line circulation. The 
additional media articles, while reflecting the publication's participation and sponsorship of various 
events, similarly lack evidence establishing its circulation. The newly submitted evidence is therefore 
not sufficient to establish the circulation, either on-line or in print, of domus design. Accordingly, 
while the Petitioner submits online circulation statistics for comparable magazines, she has not 
established that domus design's circulation is high relative to these magazines or otherwise established 
that it is a major medium. 
In addition to the evidence discussed above, the Petitioner provides a printout from joumals.ua titled 
"Domus Design Magazine Online" describing the magazine and identifying the magazine's 
"stakeholders" as architects, who "make up about 80% of Domus Design online subscribers." As 
such, this evidence is sufficient to support a finding that domus design is a professional or trade 
publication. However, in order to satisfy this criterion, an article published in a professional or major 
trade publication must also be about the petitioner and related to their work. As we note above, the 
record does not support such a finding. 
For the foregoing reasons, the new evidence submitted by the Petitioner does not establish her 
eligibility for the published material criterion at 8 C.F.R. § 204.5(h)(3)(iii). 
5 As we noted in our February 2019 decision, the Petitioner provided this article previously but did not include a complete 
translation. 
6 See USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form I-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14 7 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (instructing that evidence of published material in 
professional or major trade publications or in other major media publications about the individual should establish that the 
circulation (on-line or in print) is high compared to other circulation statistics). 
7 The aforementioned printout from http://www.burda.ua describes the magazine and the company Burda Ukraine. This 
document states the "Digital segment in Burda Ukraine" is represented by six websites, one of which is burdastyle.ua, but 
does not discuss the relationship between domus design and burdastyle.ua. 
3 
We also concluded in our prior decision that the Petitioner did not establish that she commanded a 
high salary or other significantly high remuneration for services in relation to others in her field, as 
required to meet the criterion at 8 C.F.R. § 204.5(h)(3)(ix). We noted that while she provided an 
interior design proposal, and copy of a 2017 IRS Form 1099 as evidence of a $9,800 payment for the 
project, she did not include evidence demonstrating how this remuneration compared with that of other 
interior designers. 
On second motion, the Petitioner resubmits the Form 1099 and "Bedroom Design Concept" proposal 
document. She also provides new evidence in order to demonstrate that her remuneration for this 
project is "significantly high in relation to others paid in the field." Specifically, she submits the 
following documents related to fashion designers and photographers: U.S. Bureau of Labor Statistics' 
(BLS) California occupational employment and wage estimates, entries from the BLS Occupational 
Outlook Handbook, and average salary reports from Payscale. The Petitioner also provides a printout 
of job postings from www.indeed.com and upwork.com for these occupations. However, she does not 
submit evidence of past remuneration for work in these fields; rather, as we noted in our previous 
decision, the submitted documentation relates to her work as an interior designer. Evidence 
establishing remuneration in the fields of fashion design and photography is not sufficient to 
demonstrate that she has commanded significantly high remuneration for her work in the field of 
interior design. The new evidence on motion, therefore, does not show that she meets the criterion for 
high salary or remuneration pursuant to 8 C.F.R. § 204.5(h)(3)(ix). 
III. CONCLUSION 
The new evidence submitted by the Petitioner on motion is not sufficient to demonstrate that she has 
fulfilled at least three of the initial evidentiary requirements. As a result, we need not provide the type 
of final merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise 
that we have reviewed the record in the aggregate, concluding that it does not support a finding that 
the Petitioner has established the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. USCIS has long held 
that even athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter of Price, 20 I&N Dec. 953,954 (Assoc. Comm'r 1994). Here, the Petitioner 
has not shown that the significance of her work is indicative of the required sustained national or 
international acclaim or that it is consistent with a "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also section 203(b )(l)(A) 
of the Act. Moreover, the record does not otherwise demonstrate that the Petitioner has garnered 
national or international acclaim in the field, and she is one of the small percentage who has risen to 
the very top of the field of endeavor. See section 203(b )(1 )(A) of the Act and 8 C.F .R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated her eligibility as an individual of 
extraordinary ability. The motion will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
4 
ORDER: The motion is dismissed. 
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